The opinion of the court was delivered by: ROBERT P. PATTERSON, JR.
ROBERT P. PATTERSON, JR., U.S.D.J.
Xin-Chang Zhang petitions this Court pursuant to 8 U.S.C. § 1105(a)(a) for a writ of habeas corpus to review the determinations of the Board of Immigration Appeals ("BIA") denying Petitioner's application for asylum and upholding Petitioner's placement in exclusion rather than deportation proceedings. For the reasons stated below, the BIA's determinations are remanded.
The smuggling ship Golden Venture ran aground off the beaches of Rockaway, Queens on June 6, 1993. Petitioner Xin-Chang Zhang, a passenger and a national of the People's Republic of China, swam ashore where he was taken into custody by law enforcement officials and subsequently transferred into the custody of the INS. Petitioner was placed in exclusion proceedings and, in separate hearings before an immigration judge, petitioned for asylum and moved to terminate his exclusion proceedings. Petitioner subsequently appealed to the BIA on both issues.
Petitioner's Experience in China
Petitioner states that in October 1991, one month after the birth of his first child, Petitioner was asked by local officials in Chang Le County in Fu Jian Province that he or his wife undergo sterilization surgery pursuant to China's one child per family policy. (Lenihan Aff. Ex. 31, PP 2, 11-12). Petitioner further states that local officials usually do not pressure people to undergo sterilization after having only one child, and that Petitioner was singled-out because he had had a quarrel with a powerful neighbor. Id. P 17. Petitioner states that he and his wife opposed sterilization because they wanted to have more children and feared the health effects of sterilization surgery. Id. P 18.
Petitioner's Flight from China
Petitioner states that, in order to avoid sterilization, he and his wife fled from their home and went into hiding separately. (Lenihan Aff. Ex. 31, PP 18-20). After working for approximately six months, Petitioner hired professional smugglers to take him to the United States, paying $ 5,000 in advance and agreeing to pay an additional $ 25,000 after arriving in the United States. Id. P 25-26. After more than three months at sea, Petitioner arrived in the United States aboard the Golden Venture, which ran aground approximately 100 to 200 feet off the Rockaway Beach in Queens, New York. (Lenihan Aff. Ex. 1 at 3). Petitioner states that, after the ship ran aground, there were "helicopters with floodlights flying over the Golden Venture and rescue boats in the water." (Lenihan Aff. Ex. 31, P 44). Petitioner climbed down a ladder into the water and swam ashore. Id. P 45. When Petitioner arrived on the beach, he "walked a few steps and then collapsed to the ground"; the police were a short distance away and took Petitioner into custody. Id. P 46.
An immigration judge ("IJ") found that Petitioner was properly placed in exclusion proceedings because he had not made "entry" into the United States, (Lenihan Aff. Ex. 1 at 7), and denied Petitioner's application for asylum on the grounds that Petitioner had not established a well-founded fear of persecution within the meaning of the asylum laws. (Lenihan Aff. Ex. 2 at 30). On March 22, 1994, the Board of Immigration Appeals ("BIA") upheld both conclusions of the IJ. (Lenihan Aff. Ex. 3).
The BIA's conclusions of law are reviewed de novo. Sotelo-Aquije v. Slattery, 17 F.3d 33, 35 (2d Cir. 1994); Abedini v. United States Immigration and Naturalization Serv., 971 F.2d 188, 190-91 (9th Cir. 1992). "The BIA's factual findings . . . must be upheld if ...